Fred Bombard v. Park Newton

• Decision Date: 05 October 1920
• Citation: 111 A. 510,94 Vt. 354
• Parties: FRED BOMBARD v. PARK NEWTON
• Court: Vermont Supreme Court

111 A. 510

94 Vt. 354

FRED BOMBARD v. PARK NEWTON

Supreme Court of Vermont

October 5, 1920

May Term, 1920.

ACTION OF TORT for negligently killing plaintiff's cows with an automobile on a public highway. Plea, the general issue. Trial by court in the St. Albans City Court, Franklin County N. N. Post, City Judge. Judgment for the plaintiff. The defendant excepted.

Judgment affirmed.

C G. Austin & Sons for the defendant.

H P. Dee and F. L. Webster for the plaintiff.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

POWERS

The plaintiff had as good a right to drive his cows along the highway as the defendant had to drive his automobile over it. Robinson v. Flint, etc., R. Co., 79 Mich. 323, 44 N.W. 779, 19 A. S. R. 174; Smith v. Matteson, 41 Hun 216. The parties had equal and reciprocal rights to the use of the road, and each owed the other the duty of so exercising his own right as not to interfere with that of the other. Aiken v. Metcalf, 90 Vt. 196, 97 A. 669. The fact that it was in the nighttime affected the rights of the parties only as it bore upon the amount of vigilance each was bound to exercise. The fact that the defendant was operating an automobile, an instrumentality whose capacity for harm is well exemplified by the results in this case, and the fact that the plaintiff was driving cows, animals whose viatic vagaries have come to be known of all automobile drivers, were conditions affecting, merely, the degree of care required of the parties respectively.

On the question of the defendant's negligence, the court found that he was driving at an excessive rate of speed, and that he negligently failed to discover the cows in time to avert the accident. These findings are fully supported by the evidence. As to the first, the defendant admitted that he was going "about" twenty-five miles an hour; and the results of the catastrophe indicate rather strongly that he underestimated his speed. The cows were walking along the road, one behind the other. The one ahead was spoken of as "the big cow." The automobile struck her on her right side as she turned east, and threw her into the middle of the road in a dying condition. As a result of this collision, the car skidded, and as the rear end swung around sharply to the left, it struck the other cow, killing her instantly and casting her dead body a distance of 57 feet to the north and west. The machine itself, at a point 40 or 50 feet from where it struck the first cow, shot across the road to the right and buried its front end in the bank. Surely, all this was enough to support the first of the above findings.

As to the other, the defendant testified that he did not see the big cow until he was within about 15 feet of her. Yet the road was straight and level, and, according to the evidence, his headlights were in good condition and lighted the road ahead throughout its full width for a distance of 18 or 20 rods. The cow was walking in the west wheel track, which was the side on which she belonged, and, if the defendant had been exercising anything like the watchfulness that the circumstances demanded of him, he should have sooner discovered the cow in the road.

Nor can we sustain the defendant's claim that there was no evidence tending to show that the plaintiff was in the exercise of due care. We agree that contributory negligence would defeat the action, and that the burden of proof was on the plaintiff. But direct or affirmative evidence to this point is not required. Ryder v. Vt. Last...